We can’t identify those who registered with NHIS cards in 2012 – EC to Supreme Court

• Posted on June 9, 2020June 9, 2020
• by Nana Kwesi Coomson
• Comment

The Electoral Commission (EC) has admitted that it has no way of identifying either in its database or the source forms who used the National Health Insurance (NHIS) card to register in 2012 and obtained a voters ID card.

Giving legal basis why it does not want to accept the existing voter Identity cards as a proof of Ghanaian citizenship in its planned new voter registration exercise the commission said, “Indeed the 2nd defendant [EC] simply has no way of identifying either in its database or the source forms who used the NHIS card so its unable to clean the register of such registrations at all.”

This was made known when the EC filed at the Supreme Court registry on Monday, June 8, 2020, the legal basis for which it has planned to refuse the existing voters’ identification card as a form of identification in the upcoming mass voters registration exercise.

In a Supplementary Statement of Case filed at the Supreme Court registry and seen by Graphic Online, the EC explained that the compilation of a new register that does not depend on the existing voter’s ID cards will give the register to be compiled more credibility than the existing register.

“Infact at page 16 of the EC’s own Training Manual used for the teaching of its Registration Officials in 2012, it was stated that “proof of eligibility was not required”. Indeed to make it impossible to require proof of eligibility, the Form 1A which is required to be filed out before an applicant may register did not provide any place on the form that the registration officials could record proof of eligibility except the National ID card.”

It said even the training manual referred to set out a list of acceptable documents to proof eligibility which included documents like the birth and baptismal certificates which C.I. 72 had not sanctioned.

The Supreme Court last week ordered the EC to provide the legal basis why it has decided to refuse to accept the existing voters’ identification card as a form of identification in the upcoming mass voters registration exercise.

A seven-member panel of the Supreme Court, presided over by the Chief Justice, Justice Anin Yeboah, gave the order Thursday, June 4, during hearing of a suit by the opposition National Democratic Congress (NDC) challenging the upcoming compilation of a new voters register by the EC.

Legal basis

In its legal basis to the Supreme Court order, the EC said its first legal basis is that it has the sole exclusive constitutional responsibility to compile a voters register and to determine how that compilation will be effected and it is not subject to the direction or control of any other person or body. Article 45(a) and Article 46 of the Constitution and as enunciated by Abu Ramadan & Anor (No.2 [2015-2016] 1 SCGLR 1.

It said its second legal basis is that in exercising its exclusive constitutional duty, it has placed before Parliament a Constitutional Instrument (C.I.) that does not include the use of the existing or old voters ID cards, exercising its constitutional discretion to do so. 

It also added that through its own internal review and due diligence mechanism, it has realised that C.I. 12 did not require any proof of qualification to register as a voter.

This, it said means that anyone who registered under C.I. 12 cannot be said to have satisfied the constitutional test of proving qualification since no proof was required even though the criteria for qualification under Article 12 was set out therein.

The EC also added that a review of C.I. 12 shows that what was provided in it was a challenge mechanism to enable a person’s registration to be challenged but again an applicant for registration did not have to prove first that he or she actually qualified.

This, the EC said clearly shows that the Voters ID Card derived from the C.I. 12 registrations are legally and constitutionally doubtful and therefore cannot be relied upon as the basis for meeting the constitutional qualification test.

With respect to C.I. 72, it said the Supreme Court found in Abu Ramadan No.1 that the use of the NHIS card to register was unconstitutional because it did not prove qualification.

“An anecdotal evidence provided by registration officials during the compilation of the voters register under C.I. 72 showed that a majority of applicants used the NHIS to register as it was the most widely accessible card at the time. This led the Supreme Court to conclude as a matter of law that the 2012 voters register procured under C.I. 72 was neither reasonably credible nor accurate as it constitutionally required; ipso facto if the register was not reasonably accurate and credible then the card derived thereunder cannot constitutionally tenable.”

The EC went ahead to make reference to the 2014 Supreme Court case, Abu Ramadan and Anor v Electoral Commission and Anor; and Kwasi Danso Acheampong v Electoral Commission and Anor where the Supreme Court went further to perpetually injunct the use of the NHIS card and the voters’ ID card procured pursuant C.I. 72.

It said in reviewing the internal documents of the EC, it has found that not only did applicants use the NHIS cards to register, but the registration officials also were not even required to ask for proof of eligibility before registering an applicant.

“Infact at page 16 of the EC’s own Training Manual used for the teaching of its Registration Officials in 2012, it was stated that “proof of eligibility was not required”. Indeed to make it impossible to require proof of eligibility, the Form 1A which is required to be filed out before an applicant may register did not provide any place on the form that the registration officials could record proof of eligibility except the National ID card.

Furthermore, the training manual referred to set out a list of acceptable documents to proof eligibility which included documents like the birth and baptismal certificates which C.I. 72 had not sanctioned. Indeed the 2nd defendant [EC] simply has no way of identifying either in its database or the source forms who used the NHIS card so its unable to clean the register of such registrations at all.

The EC added that the voters registration made under C.I. 91 are constitutionally and legally doubtful for the reason adduced for the voters ID Cards produced pursuant to C.I. 12 and C.I. 72. This is because even though the Supreme Court had injuncted the use of the voters ID card under C.I. 72 the voters ID cards procured under C.I. 12 could still be used to register under C.I. 91.

“We have already demonstrated above that the provenance of the voters ID cards under C.I. 12 is legally and constitutionally doubtful and cannot be relied upon as credible proof of qualification to register.

“In addition, it is noteworthy, that even though you could not use either the C.I. 72 voters ID card to register holders of voters ID cards under C.I. 12 and C.I. 72 could still guarantee the registrations of those who had none of the forms of identification that proved qualification. In effect we have the problem of the fruit of the poisonous tree on our hand. If the tree is poisonous the fruit is poisonous.”

Finally it is important to state that the exclusion of previous or old voters ID cards, quite apart from being unconstitutionally permissible and lawful will not in anyway disenfranchise any prospective registrants. It is not always the case that prospective registrants possess existing or old voters ID card to be used to register and yet such persons are able to register. For example, first time applicants for voters registration will never have an existing or voters ID card and yet are able to be registered even when they do not have other acceptable forms of identification.”

“We respectively remind the Court that the issue is not whether Ghanaians are on the register or not. Not every Ghanaian is qualified to be on the register. It is the duty of the 2nd Defendant [EC] to ensure that only Ghanaians who meet the constitutional qualification test are registered.”

Attached below is a copy of the EC’s legal basis to the Supreme Court

• EC_Legal_Arguments_062020.pdf (pdf, 8.38 MB)

-Graphic